AL MONZO CONSTRUCTION COMPANY v. MONROEVILLE BOROUGH (03/29/72)

decided: March 29, 1972.

AL MONZO CONSTRUCTION COMPANY, INC., ET AL.v.MONROEVILLE BOROUGH

Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Al Monzo Construction Company, Inc., a Pennsylvania Corporation, and Gateway Equipment and Supply Company, Inc., a Pennsylvania Corporation v. The Council of the Borough of Monroeville, No. 96 of 1971.

COUNSEL

Richard L. Rosenzweig, with him Rosenzweig & Rosenzweig, for appellant.

This is an appeal by the Borough of Monroeville from a final order of the Court of Common Pleas of Allegheny County nullifying the revocation by the Borough of a use permit and enjoining it from interfering with the appellees' performance of excavation work on lands owned by them. Our consideration of this matter has been rendered unusually arduous by the fact that the appellant has filed a monumental brief, 17 pages of which are taken up with a history of the case detailing activities, negotiations, correspondence, conversations

[ 5 Pa. Commw. Page 99]

and neighborhood gossip, most of it antedating the lawsuit.

The essential facts follow:

The appellees own land in the Borough of Monroeville on which is located an embankment which appellees desire to excavate for the asserted purposes of enlarging the parking lot of a restaurant located on the tract and of obtaining fill for use at another building project. The Borough zoning ordinance required that a conditional use permit should be obtained from Borough Council for major excavation. The appellees, apparently after performing some excavation without a permit, did on the insistence of the Borough apply for a conditional use permit. After some delay on the part of Borough Council, the permit was ordered to be issued, subject, however, to a number of conditions. Two of these conditions became of later importance: one, that the slope be at a grade of two feet lateral to one foot of height, and the other, that appellees post an indemnity bond with corporate surety in the amount of $50,000. The appellees filed a zoning appeal pursuant to Section 712 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. , 53 P.S. § 10712, averring chiefly that the requirement of indemnity bond in the amount of $50,000 was arbitrary and capricious and contrary to law. Extensive pleadings were filed but the matter was settled before hearing by stipulation of the parties. The principal effect of the stipulation was the requirement of liability insurance in lieu of the $50,000 indemnity bond. The hearing judge ordered the case settled and discontinued "in accordance with the above stipulation." The appellees then proceeded with the excavation. The Borough engineer inspected the works and found that the slope of the embankment being created was steeper than that specified in the original conditions and included by

[ 5 Pa. Commw. Page 100]

reference in the stipulation. Council then met with the appellees to hear appellees' request to amend the permit so as to allow the steeper slope. Council declined this request and the appellees then agreed to conform to the specifications as written. Nevertheless, Borough Council voted to revoke the conditional use permit; not, however, because of appellees' failure to perform in accordance with the permit, but on the grounds first, that the permit should not have been granted in the first place because the land in question was located in a zoning district in which excavation was a prohibited use, and second, because the Borough believed that appellees' purposes in making the excavation were not as represented but to prepare the ground for use as a site for an office building, a use not permitted in the district. The appellees petitioned the court below for an order nullifying the revocation of its permit and after hearing the court entered the order from which this appeal is taken. That order is as follows: "And Now, this 20 day of August, 1971, it appearing to the Court that the action of the Borough Council of Monroeville in rescinding appellant's conditional use permit was arbitrary, without authority and in derogation of appellants' vested property rights and it further appearing that the Borough Council of Monroeville has maintained a general policy of harassment in regard to the appellants it is hereby Ordered and Decreed that Borough Resolution 71-16 is declared null and void and the Borough Council is enjoined from further interfering with the excavation ...

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